Detainee Treatment Act of 2005

Detainee Treatment Act

The Detainee Treatment Act of 2005 (DTA) is an Act of the United States Congress that prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay; requires military interrogations to be performed according to the U.S. Army Field Manual for Human Intelligence Collector Operations; and strips federal courts of jurisdiction to consider habeas corpus petitions filed by prisoners in Guantanamo, or other claims asserted by Guantanamo detainees against the U.S. government, as well as limiting appellate review of decisions of the Combatant Status Review Tribunals and Military Commissions. On June 12, 2008, the Supreme Court, in the case of Boumediene v. Bush, ruled 5-4 that the Military Commissions Act of 2006 unconstitutionally limited detainee's access to judicial review and that detainees have the right to challenge their detention in conventional civilian courts.

Legislative details

The amendment affected the United States SenateDepartment of Defense Appropriations Act, 2006 (DOD Act); the amendment is commonly referred to as the Amendment on (1) the Army Field Manual and (2) Cruel, Inhumane, Degrading Treatment, amendment #1977 and also known as the McCain Amendment 1977. It became the Detainee Treatment Act of 2005 (DTA) as Division A, Title X of the DOD Act. The amendment prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay, by confining interrogations to the techniques in FM 34-52 Intelligence Interrogation. Also, section 1005(e) of the DTA prohibits aliens detained in Guantanamo Bay from applying for a writ of habeas corpus. Certain portions of the amendment were enacted as .

Signing statement by President Bush

After approving the bill President Bush issued a signing statement: an official document in which a president lays out his interpretation of a new law. In it Bush said:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

The Boston Globe quoted an anonymous senior administration official saying, "Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."

Criticism

The Act generally prohibits "cruel, inhuman, or degrading treatment or punishment" of detainees by any person, but only military interrogators are restrained to the specific guidelines of the Army's Field Manual on interrogation -- the Central Intelligence Agency was not. In an effort to close this loophole, Congress passed legislation to similarly constrain the CIA to the Field Manual's techniques. McCain voted against this bill and recommended that President Bush follow through on his threat to veto it, arguing that the CIA already could not engage in torture but should have more options than afforded military interrogators. The bill did not pass with sufficient votes to override an executive veto.

The Detainee Treatment Act cited the U.S. Army's Field Manual on interrogation as the authoritative guide to interrogation techniques, but did not cite a specific edition of the Manual. The contents of the Manual are controlled by the Department of Defense, and thus the executive branch controls whether a given technique will be permitted or banned. The Manual has been revised since the Amendment became law. The Department of Defense has claimed that none of the techniques permitted by the new Field Manual 2-22.3 are classified.

Also, the Detainee Treatment Act's anti-torture provisions were modified by the Graham-Levin Amendment, which was also attached to the $453-billion 2006 Defense Budget Bill. The Graham-Levin Amendment permits the Department of Defense to consider evidence obtained through torture of Guantanamo Bay detainees, and expands the prohibition of habeas corpus for redetainees, which subsequently leaves detainees no legal recourse if they are tortured.

Critics say these two actions deflate the Detainee Treatment Act from having any real power in stopping torture by the United States Government, and these were the true reasons why President Bush "conceded" to McCain's demands. The mainstream media credited Bush's concession to "overwhelming Congressional support" for the measure.

Amnesty International claims that the amendment's loopholes actually signal that torture is now official US policy.

Criticisms have also been directed at Senators Lindsey Graham and Jon Kyl for their amicus curiae brief filed in the Hamdan v. Rumsfeld case, in which they argued that the Detainee Treatment Act's passage sufficed to deny the Supreme Court jurisdiction over the case. Language in the Congressional Record that the majority opinion cites was inserted into the Record for the day on which the amendment passed by Graham and Kyl after the legislation had already been enacted, and furthermore that the language in question was worded in such a manner as to imply it had been recorded in live debate. The revised Record contains such phrasing as Kyl's "Mr. President, I see that we are nearing the end of our allotted time" and Sen. Sam Brownback's "If I might interrupt". Brownback has not responded to press inquiries. Justice Scalia's dissent noted this as an example of Scalia's longstanding hostility to the use of legislative history. Scalia wrote:

Worst of all is the Court’s reliance on the legislative history of the DTA to buttress its implausible reading ... These statements were made when Members of Congress were fully aware that our continuing jurisdiction over this very case was at issue. ... The question was divisive, and floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation. ... [T]he handful of floor statements that the Court treats as authoritative do not “reflec[t] any general agreement[,]” [t]hey reflect the now-common tactic — which the Court once again rewards — of pursuing through floor-speech ipse dixit what could not be achieved through the constitutionally prescribed method of putting language into a bill that a majority of both Houses vote for and the President signs.